Citation Nr: 0634643
Decision Date: 11/08/06 Archive Date: 11/27/06
DOCKET NO. 03-29 305A ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to reimbursement for treatment in a non-VA
facility from September 4, 2002, through September 9, 2002.
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran served on active duty from August 1961 to August
1969.
This appeal arises before the Board of Veterans' Appeals
(Board) from a September 2002 decision of the Department of
Veterans Affairs (VA) Medical Center in Bay Pines, Florida,
that denied the issue on appeal.
ORDER TO VACATE
The Board of Veterans' Appeals (Board) may vacate an
appellate decision at any time upon request of the appellant
or his representative, or on the Board's own motion, when an
appellant has been denied due process of law or when benefits
were allowed based on false or fraudulent evidence.
38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2006).
The pertinent regulations provide that a hearing on appeal
will be granted if the appellant expresses a desire to appear
in person. 38 C.F.R. § 20.700(a) (2006).
In this case, the appellant requested a hearing in
conjunction with this claim in his October 2003 VA Form 9,
Appeal to Board of Veterans' Appeals. That hearing was
scheduled for September 25, 2005. The veteran failed to
report for the hearing. Therefore a decision on this claim
was issued in February 2006.
Subsequently, in April 2006, it was discovered that the
letter notifying the veteran of the date of the scheduled
hearing had been sent to an incorrect address and the veteran
was scheduled for another hearing with notice sent to the
correct address. The veteran appeared at that hearing in
August 2006.
The Board finds that the February 2006 decision was issued
without providing the veteran the benefit of the hearing that
he had requested. Therefore, the veteran was denied due
process of law and that decision must be vacated. 38 C.F.R.
§§ 20.700(a), 20.904 (2006).
Accordingly, the February 15, 2006, Board decision addressing
the issue of entitlement to reimbursement for treatment in a
non-VA facility from September 4, 2002, through September 9,
2002 is vacated.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals